Q. Compare and contrast the President’s power to pardon in India and in the USA. Are there any limits to it in both the countries? What are preemptive pardons?

Model Answer:

Presidential Pardoning Powers: India vs USA

The pardoning power represents executive clemency granted under Article 72 of the Indian Constitution and Article II, Section 2 of the US Constitution, serving as a safety valve against judicial errors.

Key Similarities:
Both Presidents enjoy powers of pardon, commutation, remission, reprieve, and respite for respective federal offences. Neither requires stating reasons for clemency decisions.

Major Differences:

• Scope: India’s President can pardon Court Martial cases and all death sentences, while the US President handles only federal crimes, not state offences.

• Death Penalty: Indian President has exclusive power over all death sentences (Kehar Singh case, 1989); US President cannot intervene in state executions.

• Impeachment: India allows pardoning impeachment cases; USA explicitly prohibits it (Article II restriction).

• Review Process: Indian pardons face judicial review for arbitrariness (Epuru Sudhakar, 2006); US pardons generally enjoy immunity from judicial scrutiny.

• Decision-making: Indian President acts on binding ministerial advice (Article 74); US President exercises independent discretion.

Limitations exist in both: India through mandatory ministerial advice and judicial review on grounds of mala fide; USA through jurisdictional restrictions on state crimes and impeachment cases.

Preemptive pardons (before conviction) are recognized in USA (Ford pardoned Nixon, 1974) but remain constitutionally ambiguous in India.

Conclusion: India emphasizes institutional checks through ministerial advice and judicial review, while USA grants greater individual discretion with jurisdictional limits.